Overview of legal protection and guardianship

The statutes and fees of guardians are now firmly anchored in the law. The federal legislator has made significant changes to both the old Civil Code and the Judicial Code. These adjustments bring a clear distinction between family and professional guardians, with explicit conditions established for both categories for the appointment as a guardian in a case of judicial protection. Special attention is paid to improved control and more transparency regarding the activities of professional guardians, with measures such as the establishment of a National Register of Professional Guardians and the implementation of a separate ethical code.

In situations where an adult is no longer able to make decisions about themselves, their well-being, finances, or interests due to (mental) health reasons, judicial protection can be obtained. The peace judge can then appoint a guardian to assist in decision-making. Preferably, guardianship is entrusted to a family member or a trusted person. If this is not possible, a professional guardian is appointed. Details about the establishment and organization of guardianship, including who can or cannot be appointed as a guardian, are described in articles 494 et seq. of the old Civil Code.

The federal legislator has now significantly tightened this framework, mainly to prevent fraudulent and dishonest practices.

Conditions

The legislation contains not only clear definitions but also explicit conditions to be met to be appointed as a family or professional guardian. Every professional guardian must be registered in the National Register for Professional Guardians, which will be operational no later than January 1, 2025. Registration is valid for two years (renewable) and requires compliance with specific qualifications, including a recognized theoretical and practical training, the endorsement and compliance with the ethical code, and the demonstration of certain material and personal qualities.

Only professional guardians who meet these legal conditions and for whom no incompatibility exists are permitted to be included on an available list in the National Register of Professional Guardians. The peace judge considering appointing a professional guardian must choose from the guardians listed on that list. The ethical code is developed by Royal Decree and is complementary to the code of the regulated profession of the concerned guardian.

Compensation

The old Civil Code now stipulates that the justice of the peace may award a professional guardian a lump sum compensation for services rendered and costs incurred in relation to the management of the assets of the protected person. This compensation amounts to 1,000 euros per year per guardianship, with an increase of 125 euros in the first year. The base compensation may not exceed the average monthly income of the protected person. In addition, an extra lump sum compensation of 5% of the annual income of the protected person above 20,000 euros per year per guardianship may be granted. Special circumstances can give the justice of the peace the right to refuse or reduce the compensation.

In addition to the lump sum base compensation, the law also provides for compensation for extraordinary official duties. After receiving statements with reasoned grounds, the justice of the peace may award the guardian compensation that is in line with the extraordinary official duties performed. This compensation is a maximum of 125 euros per hour.

The law comes into force on a date to be determined by the King, but no later than 1 September 2025, with some exceptions.

Source: 8 November 2023 – Law concerning the status of guardian over a protected person, BS 30 November 2023, page 111307.

See also: Old Civil Code, art. 494 et seq.; Judicial Code, art. 64, 465, 460, etc.